How to remove an executor

Removing an executor

Friction between executors and beneficiaries is common. Beneficiaries often feel that executors are dealing with the estate administration too slowly or are being unhelpful. Executors often feel that beneficiaries do not understand the need for a thorough approach where some degree of delay is part of doing the job properly.

Misunderstandings lead to friction and things can escalate quickly to threats of legal action.

Based on our experience of dealing with many beneficiary clients, it’s important to adopt a measured approach. Threatening legal action at the beginning is almost always a bad move. The legal grounds (see below) for removing an executor who just seems slow, arrogant or unco-operative are very difficult and high risk.

Establish the facts first

The first step for beneficiaries with concerns should be to formally write to the Executor(s) seeking information.

The legal duty of executors is to keep all Beneficiaries “reasonably informed”, which gives the executor(s) considerable leeway. This is where a measured approach, with the assistance of lawyers, can assist, especially where executors seem to be reluctant to provide any or the bare minimum of information, which would typically be only information about income, distributions and expenses.

The chances of successfully pressurising executors are also increased if all or a clear majority in number of beneficiaries act together, so it’s important to speak with other beneficiaries before seeking to take any steps.

Basic process for how to remove an executor

In general, the following steps may be involved:

1. Obtain the consent of all beneficiaries: Unless the will specifically provides otherwise, all beneficiaries must agree to the removal of an executor. If any beneficiary objects, the court may still allow the removal if it is in the best interests of the estate.

2. File a petition with the court: If all beneficiaries consent, the person seeking to remove the executor will need to file a petition with the Probate Court. The petition will need to state the reasons why the executor should be removed.

3. Serve the petition on the executor: Once the petition is filed, it must be served on the executor. The executor has the right to respond to the petition and to argue that they should not be removed.

4. Hearing: If the executor disputes the petition, there will be a hearing before the Probate Court. The court will hear evidence from both sides and then make a decision about whether or not to remove the executor.

5. Order of removal: If the court orders the executor to be removed, the court will also appoint a new executor. The new executor will have all of the same powers and responsibilities as the old executor.

What factors will the court consider in deciding whether to remove an executor?

The application to remove is generally based on Section 50 Administration of Justice Act 1985. This provides that the High Court can remove an executor if this is necessary for the proper administration of the state and to protect the beneficiaries. The court will consider the evidence and factors which include :-

• Has there been any wrongdoing and if so, will this impact the beneficiaries materially? - examples would be fraud, where the Executor uses estate money or assets for their own benefit or conflict of interest, for example, where an executor is also a beneficiary but can also apply where the executor is not. A conflict of interest might arise, for example, if the executor is interested in buying an asset of the estate, such as a property. In that situation, the executor would need to be able to clearly demonstrate acting in the overall best interests of beneficiaries. Where a court is satisfied the executor has or is not acting in the best interests, removal is a likely outcome.

• Any evidence available as to how significant it was for the deceased to have his or her chosen executors administer the estate.

• Is the executor clearly being unco-operative or delaying, such as failing to provide basic financial information to the beneficiaries? - delay is a huge source of frustration for beneficiaries is where they don’t get their inheritance within a few months of death. However, executors must act carefully and prudently, ensuring that they have identified assets and debts. Often, the main asset is a property, and executors will want to ensure they ensure the valuation of the property is reasonable and that the best sale price is obtained. To avoid conflict, sensible executors should keep beneficiaries fully updated as to why there may be delays. Estate administration can commonly take up to a year and sometimes more. This is why an application to court for removal would be very risky within the first year.

• Is the executor incompetent? - there is a difference between the standard of skill and experience expected from a non-professional executor than there is where the executor(s) is/are accountants or lawyers for example. Where there are doubts about competence, before seeking removal, beneficiaries should seek to actively assist the executor, perhaps suggesting that professional help I sought, with the approval of the beneficiaries, at the cost of the estate.

• Who might be appointed to replace the executor?  – this is especially relevant where the estate is not high value or complex so that appointing professionals as replacement might not be proportionate. In that scenario, who else might be a suitable replacement?

• Is the dispute largely based on a breakdown in relations or personal animosity? - if the court decides that this is the main driving factor in the application to remove, it is unlikely to make the order.

An alternative application may be available under Part 64 of the Civil Procedure Rules. This is a more narrowly focused application where the Executor is refusing to provide or providing incomplete accounts to beneficiaries. It can be a useful way of putting pressure on the executor to start co-operating with and keeping beneficiaries informed.